No. 96-8312
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
ALEXANDER FAULKNER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
VICKI S. MARANI
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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QUESTIONS PRESENTED
1. Whether petitioner was entitled to discovery in support of
a claim of selective prosecution, absent evidence that similarly
situated persons of a different race have not been prosecuted for
that offense.
2. Whether the district court abused its discretion in
denying petitioner's motion to withdraw his guilty plea under Fed.
R. Crim. P. 32(e).
3. Whether a defendant has an absolute right to withdraw his
guilty plea after the district court has accepted it but before the
district court has decided whether to accept or reject an
accompanying plea agreement.
(I)
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
No. 96-8312
ALEXANDER FAULKNER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. A21-A26) is
reported at 103 F.3d 684.
JURISDICTION
The judgment of the court of appeals was entered on December
24, 1996. A petition for rehearing was denied on March 4, 1997.
Pet. App. A27. The petition for a writ of certiorari was filed on
March 20, 1997. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
Under an indictment returned in the United States District
Court for the District of Minnesota, petitioner pleaded guilty to
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one count of conspiring to possess with intent to distribute, and
to distribute, cocaine and cocaine base, in violation of 21 U.S.C.
846; one count of possessing cocaine with intent to distribute, in
violation of 21 U.S.C. 841(a) (l); and one count of money
laundering, in violation of 18 U.S.C. 1956(a) (1) (B) (i). 1. He was
sentenced to concurrent prison terms of 300 months on the
conspiracy and possession counts, and 240 months on the money
laundering count, to be followed by five years of supervised
release. The court of appeals affirmed. Pet. App. A21-A26.
1. Petitioner was a leader of a conspiracy that distributed
kilograms of cocaine and cocaine base in the Rochester, Minnesota,
area between October 1993 and February 1995. Pet. App. A6, A15-
A16, A22. The FBI intercepted telephone conversations among the
conspirators, including petitioner's conversations, during which
drug sales were discussed. Gov't C.A. Br. 2. Petitioner used
proceeds from drug sales to buy a van, for which he obtained title
in another's name in order to conceal his ownership of a vehicle
purchased with illicit funds. 6/27/95 Plea Tr. 28-29, 38, 50-52.
At the time of his arrest, petitioner was in possession of about 17
ounces of cocaine and three pistols. Gov't C.A. Br. 2.
On June 21, 1995, petitioner moved for discovery of evidence
that would support a claim that petitioner was a victim of a
discriminatory prosecution based on race. In support of his
___________________(footnotes)
1 Petitioner also pleaded guilty to one count of using and
carrying firearms during and "in relation to a drug-trafficking
crime. That count was dismissed at sentencing in light of this
Court's intervening decision in Bailey v. United States, 116 S.
ct. 501(1995). Gov't C.A. Br. 2-3.
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motion, petitioner relied on the Ninth Circuit's en banc decision
in United States v. Armstrong, 48 F.3d 1508, 1513-1514 (1995),
which held that "inadequately explained evidence of a significant
statistical disparity in the race of those prosecuted suffices to
show the colorable basis of discriminatory intent and effect that
warrants discovery on a selective prosecution claim." The day
after a hearing on June 22, 1995, the magistrate judge issued an
order recommending denial of the motion. App., infra A1-A6. The
magistrate judge explained that petitioner had failed to show "any
basis at all for believing that discriminatory prosecutorial
selections have occurred in this case." Id. at A3 (internal
quotation marks omitted). The magistrate judge observed that,
"[o]f the ten Defendants originally indicted in this case, seven
were African-American men, one was an Hispanic man, and two were
Caucasian women." Id. at A4. The magistrate judge also observed
that the statistics proffered by petitioner "do not relate to the
question of whether African-Americans and Hispanics are prosecuted
in federal court more often than those of another race." Ibid. On
June 26, 1995, the district court "accept[ed] and endorse[d]" the
magistrate judge's recommendation, and denied the-motion. 6/26/95
Tr. 4.
On June 27, 1995, as trial was about to begin, petitioner
voluntarily signed a plea agreement and entered an unconditional
guilty plea during a change-of-plea hearing that fully complied
with Fed. R. Crim. P. 11. Pet. App. A16, A24. In exchange for
petitioner's guilty plea, the government dismissed at sentencing
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four counts of the indictment. Id. at A1. As a result, petitioner
avoided an otherwise mandatory term of life imprisonment. Id. at
A16; Pet. 24.
The plea agreement was the fourth version tendered to
petitioner, who by his own admission was familiar with each
version. Pet. App. A23; 6/27/95 Plea Tr. 2. Petitioner, who was
a 32-year-old man with a high school education, who could read and
write English (6/27/95 Plea Tr. 30), and who had a substantial
criminal history (Pet. App. A4), acknowledged under oath that he
had sufficient time to consult with his attorney about the plea
agreement (6/27/95 Plea Tr. 35); that he understood its terms,
including the fact that if he pleaded guilty he could not later
appeal (id. at 29-30, 35-36); that his attorney had carefully
explained how the Sentencing Guidelines applied to him (id. at 9);
and that he was satisfied with his attorney's representation of him
(id. at 36).
On August 9, 1995, petitioner moved to withdraw his guilty
plea. App., infra, B1-B3. He alleged that his attorney had been
ineffective by engaging in "misrepresentation and lack of defensive
preparation" by not applying "the right defensive strategy" in
pretrial motions, and by failing to inform him of "the in depth
details of his plea agreement." Id. at B1-B2. Petitioner also
claimed that he had not sufficiently admitted his guilt at the plea
hearing and that the government had breached the plea agreement by
"double timing" him. Id. at B2. On October 13, 1995, the district
court denied the motion (App., infra, C1-C5), finding that
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petitioner "has not established a fair and just reason to withdraw
his guilty plea" under Fed. R. Crim. P. 32(e). Id. at C5. The
court explained that "[t]he record as a whole establishes that
[petitioner] was fully apprised of his rights, that [he] understood
the terms of the plea agreement, and that he was satisfied with
counsel. [He] also admitted his guilt, under oath, on numerous
occasions during the Rule 11 hearing." Ibid. The court further
explained that petitioner's claims of attorney ineffectiveness and
government "double timing" were conclusory or contradicted by his
own sworn statements at the plea hearing. Id. at C4-C5.
On October 30, 1995, this Court granted certiorari to review
the Ninth Circuit's decision in Armstrong. See United States v.
Armstrong, 116 S. Ct. 377 (1995). Petitioner thereafter moved for
discovery of evidence that would support a claim of selective
prosecution and for a stay of his sentence pending the Court's
decision in Armstrong. On February 22, 1995, the court entered an
order denying petitioner's motions. Pet. App. A9-A10. On February
23, 1996, the court sentenced petitioner in accordance with the
plea agreement. 2/23/96 Tr. 42-43. On March 7, 1996, the district
court entered a memorandum order amending its February 22, 1995,
order. Pet. App. A12-A20. In explaining its denial of
petitioner's motion for discovery, the court concluded that
petitioner "has not presented any evidence that he has been singled
out for prosecution while others similarly situated have not been
prosecuted, nor any evidence of an impermissible motive for his
prosecution." Id. at A17. The court further observed:
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[T]he evidence establishes this criminal prosecution was
undertaken in good faith and in a non-discriminatory manner.
The process of conscious selectivity was an evaluation of the
sufficiency of evidence to present to a jury. There is no
evidence to suggest that consideration has been given to the
defendant's race, religion, or the exercise of his
constitutional rights. Among the ten defendants in this case,
two are Caucasian, one is Hispanic and the others are African-
American. The government cannot be responsible for the racial
makeup of a criminal group and must deal with whomever it is
presented in such a conspiratorial group.
Ibid. In denying petitioner's motion to stay, the court reasoned
that, even under the Ninth Circuit's "lower[] * * * threshold for
discovery," petitioner could not establish a "colorable basis" for
believing he was a victim of a discriminatory prosecution. Id. at
A18.
2. On appeal, petitioner challenged the denial of his motion
for discovery on selective prosecution. Pet. C.A. Br. 11. He also
claimed that the district court had abused its discretion in
denying his motion to withdraw his plea. Id. at 23-26. Abandoning
his prior contention that the government breached the plea
agreement and conceding that it "held to its agreement," petitioner
argued instead that the government's four plea offers were
successively less generous because of the "unequal bargaining
position of the government." Id. at 24.
The court of appeals affirmed. Pet. App. A21-A26. The court
concluded that petitioner had waived his discovery claim by
entering an unconditional guilty plea. Id. at A24. The court
added that even if petitioner had preserved the issue, he
nonetheless failed to "ma[k]e the showing that is required by
United States v. Armstrong, 116 S. Ct. 1480, 1488 (1996), "which
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this Court had issued after petitioner filed his appeal. Id. at
A25 n. 2.
The court also affirmed the district court's determination
that petitioner had not shown a fair and just reason to withdraw
his plea under Fed. R. Crim. P. 32(e). The court explained:
The record demonstrates that [petitioner] voluntarily signed
his plea agreement and pleaded guilty, that his change-of-plea
hearing complied fully with all provisions of Federal Rule of
Criminal Procedure 11, and that the district court sentenced
[him] in accordance with his plea agreement. Post-plea
regrets by a defendant caused by contemplation of the prison
term he faces are not a fair and just reason for a district
court to allow a defendant to withdraw a guilty plea, or for
this court to reverse the district court.
Pet. App. A24. The court also observed that petitioner "put
himself in the bargaining position in which he found himself, * * *
and a defendant facing a government prosecutor who is prepared and
ready to go to trial cannot complain that the government is in an
unfairly superior bargaining position." Id. at A23.
ARGUMENT
1. Petitioner contends (Pet. 7-24) that the district court
erred in denying his motion for discovery in support of a claim of
selective prosecution on account of race. Petitioner does not
challenge, however, the court of appeal's conclusion (Pet. App.
A24), that petitioner waived that contention by entering an
unconditional guilty plea. See Tollett v. Henderson, 411 U.S. 258,
267 (1973) ("When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he
is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to
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the entry of the guilty plea."); see also United States v. Cortez,
973 F.2d 764, 767 (9th Cir. 1992) (under reasoning of United States
v. Broce, 488 U.S. 563, 569 (1989), selective prosecution claim is
waived by guilty plea where, at time plea was accepted, it could
not be determined from face of indictment or from record that
government lacked power to bring charge).
In any event, the court of appeals correctly found (Pet. App.
A25 n. 2) that petitioner is not entitled to discovery because he
failed to make "a credible showing of different treatment of
similarly situated persons." United States v. Armstrong, 116 S.
Ct. 1480, 1489 (1996).2. Petitioner asserts that "the Black
population [in Rochester, Minnesota] is minuscule;" that about two-
thirds of the "648 Black males in the metropolitan area" are
between the ages of 18 and 44; and that "[g]iven the amount of
drugs alleged in this case, these numbers alone should give rise to
suspicion * * * sufficient to order * * * a hearing on whether to
issue a discovery order." Pet. 15-16. That "suspicion," however,
is not a "credible showing of different treatment of similarly
situated persons."
2. Petitioner argues (Pet. 24-26) that the district court
abused its discretion in denying his motion to withdraw his guilty
plea under Fed. R. Crim. P. 32(e). Pet. 24-26. That factbound
contention does not merit by this Court.
___________________(footnotes)
2 Although petitioner acknowledges the Court's decision in
Armstrong (Pet. 14-16), most of his petition (id. 11-12, 20-24),
relies on the Ninth Circuit's en banc decision in Armstrong that
was reversed.
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Rule 32(e) provides that "[i]f a motion to withdraw a plea of
guilty * * * is made before sentence is imposed, the court may
permit the plea to be withdrawn if the defendant shows any fair and
just reason." Petitioner's belated allegation (Pet. 25) that "the
bargaining process" was unfair because the government declined to
re-extend to him plea offers that he had previously rejected does
not constitute a fair and just reason for withdrawal of his guilty
plea. As the courts below reasoned (Pet. App. A22-A23; App.,
infra C4-C5.), petitioner entered the plea agreement knowingly and
voluntarily, and he admitted his guilt on each offense of
conviction. Under those circumstances, the district court did not
abuse its discretion under Rule 32(e) .
3. Petitioner finally contends (Pet. 26) that he "has an
absolute right to withdraw his guilty plea after the district court
has accepted it but before the district court has decided whether
to accept or reject an accompanying plea agreement." That claim
has been expressly rejected by the Court's decision in United
States v. Hyde, No 96-667, slip. op. 4-8 (May 27, 1997).
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CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
VICKI S. MARANI
Attorney
JUNE 1997
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THIRD DIVISION
UNITED STATES OF AMERICA,
CRIMINAL NO. 3-95-24
Plaintiff,
v. ORDER
ALEXANDER FAULKNER
ALEXI RICARDO BRAVO, and
DORIAN DEE STUTTLEY,
Defendants.
Assistant United States Attorney Joseph T. Walbran, Esq., for
United States
Richard T. Oakes, Esq., for Alexander Faulkner
Dean S. Grau, Esq., for Alexi Ricardo Bravo
Joel C. Golden, Esq., for Dorian Stuttley
This matter came before the Court on June 22, 1995 on Defendants' Motions
for discovery.
Upon all of the files, records and proceedings herein, the Court now makes
and enters the following Order.
BACKGROUND
By Indictment dated February 24, 1995, the Defendants were charged, along
with seven other Defendants, with conspiracy to possess and distribute cocaine base
under 21 U.S.C. 841(a)(1) and 846. They were arraigned on March 7, 1995, at which
JUNE 23 1995
FILED FRANCIS E. DOSAL CLERK
JUDGMENT ENTERED
DEPUTY CLERKS INITIALS
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time a trial date was set for May 1, 1995. The Court heard arguments on Defendants'
discovery motions on March 28, 1995 and issued an Order on these motions on April 19,
1995.
The Government filed a Superseding Indictment on April 6, 1995 and the trial
date was rescheduled for May 30, 1995. The Court heard arguments on the suppression
of electronic surveillance material used in this case on May 2, 1995 and issued a Report
and Recommendation on May 15, 1995. On May 22, 1995, the Court granted a
continuance of the trial date to June 26, 1995.
On June 21, 1995, Alexander Faulkner, Alexi Bravo and Dorian Stuttley
moved to compel discovery from the Government of evidence "which may be favorable
to [each of the Defendants] concerning his claim that he is a victim of discriminatory
prosecution." Oral arguments were heard the following day. Defendants claim that more
black defendants are selected for prosecution in federal court, and that non-black
defendants are more often prosecuted in state court for the same offense, with the result
that black defendants are at risk for larger sentences, and that if they are provided with the
discovery they seek, they will be able to demonstrate this. Since the case is scheduled
to go to trial on June 26, 1995 at 2:00 p.m., counsel for Defendants orally moved to
postpone the trial for "several weeks" in order to review the data requested and make a
substantive motion to dismiss the Indictment without prejudice.
Defendants rely upon the Opinion in United States v. Armstrong, 48 F.3d
1508 (9th Cir. 1995). In that case, the Court of Appeals affirmed the power of the District
Court to order discovery of the type sought by Defendants herein. It concluded that the
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District Court had not abused its discretion in ordering discovery under the facts presented
to that Court. The Armstrong court stated that "discovery may be ordered when the
evidence provides a colorable basis for believing that discriminatory prosecutorial
selections have occurred" (id., 48 F.3d at 1512), and quoted with approval from its
decision in United States v. Bourgeois, 964 F.2d 935 (9th Cir. 1992), that "to obtain
discovery on a selective prosecution claim, a defendant must present specific facts, not
mere allegations, which establish a colorable basis for the existence of both discriminatory
application of a law and discriminatory intent on the part of the government." Armstrong
supra., 48 F.3d at 1512-1513.
It is uncertain whether the courts of this circuit would adopt the majority
opinion of the sharply divided court in Armstrong. Even if this Court were to adopt that
standard, Defendants have failed to make a factual showing to this Court that there is any
basis at all for believing that "discriminatory prosecutorial selections have occurred" in this
case. To establish a prima facie case of selective the prosecution, "defendant must
demonstrate: 1) that he has been singled out for prosecution while others similarly situated
have not been prosecuted for similar conduct; and 2) that the Government's action in thus
singling him out was based on an impermissible motive such as race." United States v.
Parham, 16 F.3d 844, 846 (8th Cir. 1994) citing United States v. Matter, 818 F.2d 653 at
654 (8th Cir. 1987). The Defendants carry the burden of overcoming the rational
presumption that the United States Attorney chose to prosecute them because of the size
of their drug dealing operation rather than because of their race. See United States v.
Marshall, No. 93-50574, 1995 WL 354215 at *1 (9th Cir. June 14, 1995).
56 F.3 1210
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Defendants argue that in the Application for an order authorizing the
interception of wire and electronic communications, the Government identified certain
individuals as "black males", and did not identify the race of the others. They ask the
Court to assume that those not identified as "black males" are caucasian. They further ask
the Court to assume that these other individuals were "similarly situated" to Defendants,
that they were not prosecuted, and further that "the government's action in thus singling
[Defendants] out was based on an impermissible motive such as race, religion, or the
exercise of constitutional rights." United States v. Parham, 16 F.3d 844 (8th Cir. 1994).
There is no factual basis upon which the Court could indulge in any of these assumptions,
or make any findings of fact which would support a conclusion that there has been a
colorable showing of discriminatory prosecutorial selection.
Of the ten Defendants originally indicted in this case, seven were African-
American men, one was an Hispanic man, and two were Caucasian women. (Mr. Stuttley
and Mr. Faulkner are African-American men, and Alexi Bravo is an Hispanic man.) The
Indictments allege possession and distribution of large amounts of cocaine, the type of
cases often presented in federal court.
The statistics presented by Defendants do not relate to this District, but to
the country as a whole. In addition, those statistics do not relate to the question of whether
African-Americans and Hispanics are prosecuted in federal court more often than those
of another race.
Finally, the consequence of the alleged prosecution in federal court instead
of state court is said to be that the sentence in federal court is likely to be more severe if
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the defendant is convicted. There is thus a separate issue as to whether the question
presented by the motions for discovery is ripe for determination at this time. The mere fact
that a defendant is tried in federal court rather than state court does not represent a denial
of any rights. If the defendant is tried and acquitted, there also would be no denial of any
rights. The issue would not seem to be ripe until a defendant is tried in federal court, and
convicted, and if at time of sentencing the sentence to be imposed in federal court would
be greater than if the proceeding had taken place in state court.
The issue of ripeness is of particular concern under the procedural facts of
this case, where the motion of the Defendants is made five days prior to the date upon
which the case is scheduled to go to trial. Counsel for Defendants stated at oral argument
that "several weeks" would be needed to complete the discovery they seek. Even if it
could be completed in less time, any order for discovery would require that the trial of this
matter be furthered postponed. Defendants have been in custody for almost five months.
They have not shown that the requested discovery would uncover evidence leading to
dismissal or that further delay in the trial is justified.
The court will not grant discovery. There is not a minimum or
colorable showing on the part of Defendants of a possibility of prevailing on selective
prosecution motion, if they were to make such a motion.
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ORDER
IT IS HEREBY ORDERED that Defendant's Motions for Discovery are
denied.
Dated June 23, 1995
JOHN M. MASON
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THIRD DIVISION
Case 3-95-24 (1)
NOTICE OF MOTION TO
WITHDRAW GUILTY PLEA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALEXANDER FAULKNER,
Defendant.
TO: The District Court and the Honorable Judge Micheal J. Davis,
Magistrate Judge John M. Mason, Assistant United States Attorney
Joseph T. Walbran.
PLEASE TAKE NOTICE: That the defendant in this matter, ALEXANDER
FAULKNER, by his attorney, Richard T. Oaks shall move the court
for the relief sought below at a time _AM, and date _1995,
or as soon as counsel may be heard, or at such time and place as the
court may further direct.
FACTS AND PROCEDURAL HISTORY
The defendant plead guilty to several counts of the indictment on
June 27-1995, And the remaining charges were dismissed. The defendant
plead to counts 1, 2, 3, and 13 of the indictment, (Conspiracy),
(Possession with intent to distribute a controlled substance),
(Possession of a firearm) and (Money laundering).
1). I would assert that the plea was plead to incompetently, and
that defense attorney failed to inform the defendant of the indepth
details of his plea agreement.
2). The defendant farther would like to assert that counsel failed
to explain to the defendant that upon pleading that his full
rights to appeal his indictment based upon his constitutional
violations and Fourth Amendment Rights, could no longer be challenged.
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By his plea of guilty, and that none of his Search and Seizure
violations and claims be renewed by motion.
3). The defendant also asserts that defense counsel misrepresentation
and lack of defensive preparation caused a great misunderstanding
and injustice.
4). The defendant also wish the court to base his withdrawal on the
factual grounds that the defendant never fully conceded to the
governments total allegations. And by law it states that when the
defendant denied the truth of prosecutors summary of facts of case
rebutted offer of proof of some facts, and that serious questions
existed about his actually admitting facts which would have supported
a conviction. U.S.A. vs Zuber (Ca 9) Nev 528, F2d 981.
5). Also the defendant asserts that the prosecution Breached the plea
agreement, by knowingly and intentionally double timing the defendant
which can no longer be accepted on its face by the defendant.
6). The defendant in his last assertion would show Ineffective Assistance
of Counsel, The counsel for the defendant has failed in many areas
of efficiency which could have been more consistent if the right
defensive strategy was applied at the time pretrial motions. And
to misguide a defendant into an misunderstood and unclear plea
of guilty, is clearly a show of counsel misrepresentation, which
also should afford the defendant a chance to withdraw his plea.
RELIEF SOUGHT BY DEFENDANT
THE DEFENDANT REQUEST FOR AN ORDER TO WITHDRAW HIS PLEA OF
GUILTY BE GRANTED AND HE GIVEN A CHANCE TO PRESENT HIS FULL
DEFENSE AT TRIAL. AND THAT BEFORE A DECISION IS MADE TO THIS
MOTION THAT THE DEFENDANT IS GIVEN A CHANCE TO PRESENT AN
ARGUMENT TO THE COURT TO SUPPORT HIS GROUNDS FOR WITHDRAWAL.
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DATED: August 9,1995
Respectfully submitted,
Alexander Faulkner
Washington County Jail
BOX 3801
Syillwater, Minnesota 55082
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THIRD DIVISION
ORDER
File No. 3-95-24 (1)
United States of America,
Plaintiff,
vs.
Alexander Faulkner,
Defendant.
This matter is before the Court upon Defendant Faulkner's pro se motion to
withdraw his plea of guilty.
On June 27, 1995, Defendant entered guilty pleas to Counts 1, 2, 3 and 13 of the
Superseding Indictment pursuant to a plea agreement entered into between the parties.
The terms of the plea agreement provided that the government would recommend a
sentence within a range of up to 360 months, provided defendant cooperate fully in the
investigation and prosecution of others involved in the distribution of cocaine and
cocaine base into Rochester, Minnesota by providing full and honest answers to during
interviews and in testimony before grand jury proceedings or trials. Based upon this
cooperation, the government also agreed to move for a downward departure from the
mandatory minimum sentence of ten years.
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Defendant now moves this Court to withdraw his pleas of guilty, on the basis of
ineffective assistance of counsel and that the government has breached the plea
agreement.
Rule 32 (d) of the Federal Rules of Criminal Procedure provides that a court may
permit withdrawal of a guilty plea upon a showing by the defendant of any fair and just
reason, if such motion is made prior to the imposition of sentence. The defendant has no
right to withdraw his plea of guilty. United States v. Boone, 869 F.2d 1089, 1091 (8th
Cir.) cert. denied, 493 U.S. 822 (1989). This Court has discretion to allow or deny such
motion. Id. The presentation of conclusory allegations unsupported by specific facts is
subject to summary dismissal, "as are contentions that in the face of the record are
wholly incredible." Blackledge v. Allison, 431 U.S. 63, 74 (1976).
To determine whether to allow a pre-sentence motion to withdraw a guilty plea,
this Court must consider the following factors: 1) whether defendant established a fair
and just reason to withdraw a plea; 2) whether defendant asserts his legal innocence of
the charge; 3) the length of time between the guilty plea and the motion to withdraw;
and 4) if the defendant established a fair and just reason for withdrawal, whether the
government will be prejudice. Boone, 869 F.2d at 1093.
In his motion, defendant does not assert his legal innocence. Rather, he asserts
that he did not fully concede to the government's allegations. A review of the transcript
from the Rule 11 Guilty Plea hearing establishes that while defendant did not fully agree
with some of the factual details as presented by the government, defendant nonetheless
agreed to facts which sufficiently support the charges to which he pleaded guilty. On two
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occasions during the Rule 11 guilty plea hearing, defendant admitted his guilt. At page
9, defendant stated " Ispoke to Joan Anderson, who was here today, and I advised her to
come down here and talk to everyone, you know, because all of us was guilty to a
degree." Later, at page 14, defendant stated "I don't know if I'm doing the right thing by
making this plea. Yes, I'm guilty. And if I'm guilty, I would rather just plead guilty."
The main thrust of defendant's motion to withdraw his guilty plea is based upon
ineffective assistance of counsel. To successfully establish a claim of ineffective
assistance of counsel, defendant must show that, if not for the errors of counsel,
defendant would not have pleaded guilty and would have proceeded to trial. United
States v. Lockstein, 859 F.2d 83 (8th Cir. 1988). The claimant carries the burden of proof
to establish an ineffective assistance of counsel claim. Alexander v. McCotter, 775 F.2d
595, 602 (5th Cir. 1985). For the reasons stated below, the Court finds all of defendant's
assertions with respect to his claim of ineffective assistance of counsel are without merit.
Defendant asserts that counsel failed to inform him of the in-depth details of his
plea agreement. Defendant provides no further evidence, or offer of proof to support
this allegation. Furthermore, the record does not support the assertion. At the beginning
of the hearing, counsel for defendant stated:
MR. OAKES: Your Honor, the record should show that this is the fourth version
of a proposed plea agreement. And the differences between those documents are
very slight. So this is language in this document that we just excluded which both
myself and my client are very familiar with.
(Guilty Plea, T.9).
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Furthermore, the government went over each term of the plea agreement with the
defendant at the Rule 11 hearing. Accordingly, the Court finds no merit to the assertion
that defendant was not instructed as to the details of the plea agreement.
The defendant also argues that he was not informed by counsel that he would lose
his right to appeal constitutional violations and Fourth Amendment rights if he entered a
plea of guilty. The Court did, however, advise defendant in this regard.
COURT: Your understand that your counsel had made some motions on your
behalf with the suppression of certain evidence in your case, and those were ruled
on both by the magistrate judge and myself; and with you pleading guilty, and if
the Court accepts your plea of guilty, you will not be able to further appeal those
issues to a higher court?
DEFENDANT FAULKNER: Yes, sir.
The defendant also asserts that misrepresentation by counsel and counsel's lack
of "defensive preparation" caused a great misunderstanding and injustice. In paragraph
6 of his motion, defendant attempts to elaborate on his claim of misrepresentations of
counsel by asserting counsel "failed in many areas of efficiency which could have been
more consistent if the right defensive strategy was applied at the time pretrial motions."
The defendant does not specify what counsel failed to do to support his claim of
lack of preparation. Nor does defendant cite to any fact, unknown at the time he
pleaded guilty, that would have made going to trial a more appealing alternative.
Lockstein, 859 F.2d at 83. Mere conclusory allegations do not establish a fair and just
reason to support a withdrawal of plea. Alexander, 775 F.2d at 603.
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Furthermore, defendant stated at the Rule 11 guilty plea hearing that he had
sufficient time to consult with counsel and that he was satisfied with counsel. (T. 35-36).
Defendant's failure to raise objections to counsel's performance at the Rule 11 hearing
refutes any claim of ineffective assistance of counsel as a basis for withdrawing a guilty
plea. United States v. Abdullah, 947 F.2d 306, 312 (8th Cir. 1991) cert denied, 504 U.S.
921 (1992).
Defendant's last asserted bases for withdrawing his guilty plea is that the
government breached the plea agreement by "double timing" the defendant. Again,
defendant does not proffer any specific facts to support this allegation. The record of
the Rule 11 hearing establishes that counsel for the government went over all terms of
the agreement, and defendant responded that he understood the agreement and wished
to enter into the agreement.
The record as a whole establishes that defendant was fully apprised of his rights,
that defendant understood the terms of the plea agreement, and that he was satisfied
with counsel. Defendant also admitted his guilt, under oath, on numerous occasions
during the Rule 11 hearing. Accordingly, the Court finds that defendant has not
established a fair and just reason to withdraw his guilty plea.
Accordingly, IT IS HEREBY ORDERED that Defendant Faulkner's motion to
withdraw his guilty plea is Denied.
Date: 10-12-95
Michael J. Davis
United States District Judge
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